Citation Nr: 1017352
Decision Date: 05/11/10 Archive Date: 05/26/10
DOCKET NO. 08-04 918 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in New York,
New York
THE ISSUES
1. Entitlement to service connection for the cause of the
Veteran's death.
2. Entitlement to Dependency and Indemnity Compensation
(DIC) under the provisions of 38 U.S.C.A. § 1318.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
C. Bosely, Associate Counsel
INTRODUCTION
The Veteran served on active duty from January 1964 to
February 1967, including service in the Republic of Vietnam.
He died in January 2006. The appellant is his surviving
spouse.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 2007 RO rating decision.
Following the last RO adjudication, the appellant submitted
additional evidence without a waiver of initial RO
jurisdiction. Because the Board's decision below is fully
favorable to the appellant, the matter need not be remanded
to afford RO review of the new evidence. See 38 C.F.R. §§
20.800; 20.1304.
Please note this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
FINDINGS OF FACT
1. During his lifetime, the Veteran served on active duty in
the Republic of Vietnam during the Vietnam era.
2. The Veteran died in January 2006. The Certificate of
Death lists the immediate cause of death as hepato-pulmonary
syndrome due to liver cirrhosis. The autopsy report lists
coronary artery disease, a worsening cirrhotic picture with
increased ascites and reduced pulmonary function, and an
organized thrombus present in the right coronary venous graft
as components in the likely ultimate cause of death, which
was the recent extension of a remote myocardial infarction.
3. At the time of his death, service connection was in
effect for anxiety; right below-the-knee amputation; chronic
low back strain; a cervical spine disorder; residuals of a
gunshot wound left foot; a right shoulder condition; an eye
disorder; and occlusive arterial disease of the lower
extremity with poor circulation.
4. The autopsy report lists an organized thrombus (present
in the right coronary venous graft), which is related to a
service-connected disability, as contributing to the ultimate
cause of the Veteran's death, and the weight of the competent
evidence is in relative equipoise on the question of whether
the Veteran's liver and pulmonary disorders, which the
autopsy report list as also contributing to the ultimate
cause of the Veteran's death, are due to herbicide exposure
during the Veteran's service in the Republic of Vietnam.
5. The grant of entitlement to service connection for the
cause of the Veteran's death under the provisions of 38
U.S.C.A. § 1310 renders moot the appellant's claim of
entitlement to DIC under the provisions of 38 U.S.C.A. §
1318.
CONCLUSIONS OF LAW
1. The criteria for service connection for the cause of the
Veteran's death have been met. 38 U.S.C.A. §§ 1101, 1110,
1112 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304,
3.312, 3.313 (2009).
2. The appellant's claim of entitlement to DIC under the
provisions of 38 U.S.C.A. § 1318 is moot. 38 U.S.C.A. §§
1318, 7104 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.22,
20.101 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duties to Notify and Assist
In November 2000, the Veterans Claims Assistance Act of 2000
(VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102,
5103, 5103A, and 5107 (West 2002). VCAA and its implementing
regulations define VA's duties to notify and assist a
claimant upon submission of a substantially complete
application for benefits. See 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b). Here, the Board grants service
connection for the cause of the Veteran's death, which
represents a complete grant of the benefit sought on appeal.
Thus, no discussion of VA's duties to notify and assist is
required.
II. Analysis
A. Cause of Death
The appellant is contending that service connection is
warranted for the cause of the Veteran's death.
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). To establish
service connection for the cause of a veteran's death, the
evidence must show that a disability incurred in or
aggravated by active service was either (1) the principal
(primary) cause of death or (2) a contributory cause of
death. To be considered a principal (primary) cause of
death, a service-connected disability must have been singly
or jointly with some other condition the immediate or
underlying cause of death or have been etiologically related
to the cause of death. 38 C.F.R. § 3.312(b). For a service-
connected disability to be a contributing cause, it must have
substantially or materially contributed to a veteran's death;
it is not sufficient to show that it casually shared in
producing death, but rather there must be a causal
connection. A contributory cause of death is inherently one
not related to the principal cause. 38 U.S.C.A. § 1310 (West
2002); 38 C.F.R. § 3.312 (2003).
Here, the Board finds that the by extending the appellant the
benefit of the doubt, service connection is warranted for the
cause of the Veteran's death.
The Certificate of Death shows that the Veteran died on
January [redacted], 2006, at the age of 59. The immediate cause of
death is listed as hepato-pulmonary syndrome due to liver
cirrhosis.
In January 2006, an autopsy was performed. The autopsy
report lists the primary diagnoses as atherosclerotic heart
disease with thrombosis of the right coronary artery bypass
graft (CABG), recent extension of remote myocardial
infarction (MI), status post CABG; congestive heart failure;
passive congestion of lungs; end-stage cryptogenic cirrhotic
liver disease with ascites; and mixed hepatocellular
carcinoma and cholangiocarcinoma confined to liver
parenchyma. The autopsy report summarizes that the
combination of coronary artery disease (CAD), a worsening
cirrhotic picture with increased ascites and reduced
pulmonary function, and the organized thrombus present in the
right coronary venous graft were all components in the likely
ultimate cause of death, which was the recent extension of a
remote MI.
During his lifetime, the Veteran was service-connected for
several disorders related to wounds received during his
service in the Republic of Vietnam, including a below the
knee amputation right, and occlusive arterial disease of the
lower extremities and poor circulation associated with below
the knee amputation right. As the Veteran was service-
connected for occlusive arterial disease of the lower
extremities and poor circulation, which are related to the
reason he underwent the right coronary artery bypass
grafting, and which the autopsy report lists as contributing
to the MI causing the Veteran's death, a service-connected
disability is shown to be a contributing cause of his death.
See 38 C.F.R. § 3.303(a)
Moreover, the Veteran served in the Republic of Vietnam
during his active service. Therefore, he is presumed to have
been exposed to herbicides such as Agent Orange. See
38 C.F.R. § 3.307(a)(6)(iii). In June 2007, a private
physician, who had treated the Veteran during his lifetime,
wrote a letter explaining that it was his professional
opinion upon review of the Veteran's chart and post-mortem
report, that more likely than not the Veteran's cirrhosis and
eventual death were a result of Agent Orange exposure during
his service in Vietnam from 1965-66. Similarly, in May 2008,
a private oncology hematologist, who had attended the Veteran
during his life, wrote that although the etiology of the
Veteran's cirrhosis was pursued and not discovered, the
Veteran was exposed to Agent Orange in Vietnam, which
"certainly may have been etiologic." Finally, a private
pulmonologist in December 2005 examined the Veteran and
commented that the Veteran had significant environmental
exposure during service, and whether some of the toxins may
have induced some of the liver cirrhosis is questionable.
In summary, the autopsy report lists worsening cirrhotic
picture as contributing to the Veteran's death, and three
private physicians have related the condition to the
Veteran's Agent Orange exposure. These physicians' opinions
in this regard are uncontroverted. Accordingly, the Board
finds that the evidence is at least in a state of relative
equipoise in demonstrating that service connection is
warranted for the disorder. As the disorder contributed to
the Veteran's death, service connection for the cause of the
Veteran's death is also warranted on this basis. See id.
For these reasons, the Board finds that service connection
for the cause of the Veteran's death must be granted.
B. § 1318 Benefits
The appellant raised entitlement to DIC benefits under 38
U.S.C.A. § 1318 as an alternative theory of entitlement to
service connection for the cause of the Veteran's death. In
light of the grant of benefits described above, the Board
concludes that this aspect of the appellant's claim is
rendered moot. Entitlement under 38 C.F.R. § 1310 is the
greater benefit and is granted in full. No additional
benefit (monetary or otherwise) can be gained under 38 C.F.R.
§ 1318, nor does any controversy remain. Accordingly, the
appeal as to the claim of entitlement to DIC under 38
U.S.C.A. § 1318 is dismissed as moot.
ORDER
Service connection for the cause of the Veteran's death is
granted.
The appeal as to dependency and indemnity compensation under
38 U.S.C.A. § 1318 is dismissed as moot.
____________________________________________
S.C. KREMBS
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs